The note upon which this action is founded is signed by the defendants, severally, with their individual names, and it is declared upon merely as the joint note of the defendants, without reference to any partnership. By the principles settled in the case of Benson v. Ela, 35 N. H. 416, it must be taken conclusively, from this form of declaring, that the plaintiffs have made their election to make their attachment, as iipon their claim against the individual signers,’and not as against them as partners ; because if they had so chosen they could have declared against them as partners, and thus have secured a partnership creditors’ priority over individual creditors. But this principle has been applied conclusively, only as between creditors claiming partnership property by an attachment, or levy on execution. And.we think it should not be extended further. It is laid down, as an exception to the general rule, that strangers are not bound by the proceedings in an action between others. There is no question here between attaching creditors, and the rule consequently does not govern this case.
In Page v. Carpenter, 10 N. H. 77, it was held, that if a creditor of a partnership accepts the note of one of the partners, and brings his action upon it against him alone, and attaches the partnership property, he does not by such attachment acquire a right to contest the claim of a purchaser of the property from the firm, on account of fraud, because, as the court there held, a creditor of an individual partner can not by attachment acquire any right to the specific property of the firm. The attachment entitles him to the partner’s share of the net balance, after a settlement of all the affairs of the firm.
This case does not control the present, for two reasons; first, because it is not an action against one, or some of the partners, but is brought against them all; and, secondly, because there is here no such attachment as was there in question. The service of a trustee process creates an attachment of the principal debtor’s property in the hands of the trustee, but it is not accompanied by any interference with the possession of the specific property, and it reaches, in the case of funds, only the balance equitably due, and justly applicable to the attaching creditor’s debt; and in the case of specific property only such part as remains after all prior claims of the trustee and others have been satisfied.
By the general rules of the common law, the signature of a note by two partners, with their individual names, is sufficient to bind the firm. Thus it is said in Chitty on Bills 57, that whenever a person draws, accepts, or indorses a bill for himself and partner, he should always express that he does so for himself and partnei’, or subscribe both names, or the name of the firm. Bailey on Bills 45; Galway v. Mathews, 1 Camp. 502; McGregore v. Cleaveland, 5 Wend. 475. The signatures of both partners could hardly be more effectual than the signature of both names by one only.
Where the form of the note, or the manner of signing it, are such as to render it necessary, in order to conform the allegations to the proof, to refer to the firm or partnership, it is necessary in some form to describe the note as a partnership note. But where there *258is nothing in the form of the instrument to render this necessary, a partnership note may well be declared on in the same form as any other joint note; and unless the rights of other partnership creditors should be involved, it is immaterial whether the note is one of a partnership, or merely a joint note. The funds of both signers, whether held in partnership or not, and the individual property of both, are liable to the payment. If, then, the writ require the officer to attach the estate of the principal debtors, in the hands of a trustee, the joint funds, whether held in partnership or not, will be held by the service. But if the funds of the debtors are subject to other claims, it then becomes necessary to ascertain the nature and priority of the liens before the trustee can be charged. So if the funds of the partnership are held by an after attachment of another partnership creditor, and a defense is made on that ground, it may become material to inquire, if the claim of the plaintiff is a partnership debt which has a priority of claim upon partnership property, or merely a joint debt, in which case the trustee can be charged only for the residue, after the firm debt is satisfied. In the same manner, if, as in this case, the trustee claims the property by virtue of an assignment from the owner, it may become necessary to inquire whether the property sought to be held was the property of one or all the partners, whether the assignment was on good consideration, and bond fide, or fraudulent for any cause in fact or in law; as in this case, if the assignment was of partnership ¡property in payment of an individual debt of one of the partners to the fraudulent exclusion of the partnership creditors; and whether the claim of the creditor is really such, whatever its form, as entitles him to raise the question of the validity of the assignment.
Now the principle settled here is, that the form of negotiable paper is at most the slightest primd facie evidence of the true character and relations of the parties whose names appear upon it. The actual debtor may appear as a principal, or surety; as drawer, maker, acceptor, or indorser; and the members of a firm may appear either on the face or back, in their individual names, or in the name of the firm, in any of the capacities mentioned; and as between themselves it is wholly immaterial in which. If the paper is made, or signed in any manner in the course of the business of the firm, it is partnership paper. Richardson v. Huggins, 23 N. H. 122. The general rule is, undoubtedly, that the law presumes that the parties to a promissory note stand toward each other in the relations in which their signatures appear; but this is a mere primd facie presumption, and whenever it is necessary, for the purposes of justice, the truth may be shown to be otherwise. Whitehouse v. Hanson, 42 N. H. 9. If it would be productive of injustice to others, who have become holders of the paper, or who have acquired other rights, dependent upon the apparent relations of the parties, in ignorance of the facts, the general presumption can not be repelled by testimony. But this exception can not be extended beyond the reason of it. In this case, justice to the plaintiff requires that the truth should be admitted; and no injustice is done to the trustee to hold *259him chargeable for property which he has got into his possession wrongfully, if the plaintiff is, as he offered to prove, a creditor of the partnership, and the property was assigned to paya private debt. It was, therefore, the right of the plaintiff to show, by exü’insic evidence, that his debt was a partnership debt; and the instruction to the jury, that, for the purposes of this case, if the debt was originally a partnership debt, and in taking the new note, there was no purpose to change its character in that respect, it might still be deemed a partnership debt, was coi’rect.
And this view furnishes an answer to the exception, that the amendment was sent to the jury. The amendment was unnecessary and immaterial, and could not have operated prejudicially to the interests of the trustees. But there is a further answer to this point of the case. It is founded on a mistaken view of the duties of counsel. It is not enough to say that a paper was improperly sent to the jury by the adverse party without his knowledge. It is his duty to ascertain what papers are sent to the jury, before they leave the court; and no motion for a new trial should be allowed, merely because this duty has been neglected. It should appear that the counsel used due care, that none but proper papers were passed to the jury; and that the paper in question was sent to the jury by some mistake, or through some trick or artifice of the opposite couusel. Here it is only said that the paper was handed to the jury without the knowledge of the trustees’ counsel.
No objection can be sustained to the verdict, on the ground that the judge did not instruct the jury that the burden was on the plaintiff to show that the note was not a several note ; that is, that it was a partnership debt. Admitting the presumption to be as the counsel contend, that the note was a several note, it was the duty of the counsel to call the attention of the court to the point upon which he thinks the jury ought to be instructed, and request the specific charge to be given ; and if the court then improperly l’efuse the instruction, it furnishes good cause to set aside the verdict. Moore v. Ross, 11 N. H. 547; Goodrich v. Eastern R. R., 38 N. H. 396.
Evidence was admitted of a conversation between one of the partners and the other, relative to the embarrassed condition of the firm, and their exposure to costs, and of a proposed transfer of their pi’operty to the persons now sued as trustees. It was objected to as evidence against the trustees, because they were not present, and they are not to be affected by the conversations of third persons behind their backs; but we think the answer of the plaintiff’s counsel as to this point is quite satisfactory.. A fraudulent intention must be shown as well on the part of the grantors as of the grantees. They are independent facts, and may be shown by independent evidence. The proof of the contemporaneous declaration of the partners was competent to show their intentions, and thus to prove one point of the case. Proof that the trustees knew and assented to that intention, was then necessary, and that might be equally derived from their acts and declarations in the absence of the partners.
*260“ To prove the fraud of the grantor, his conduct and declarations before the conveyance, may be the best evidence of his fraudulent purpose; and if this is proved, the knowledge of it on the part of the fraudulent grantee may be proved by any circumstances tending to show a knowledge of the design of the grantor. Without this latter evidence, the former would be wholly ineffectual to defeat the conveyance. The concurrence of a fraudulent design in both, must-be proved in order to defeat the conveyance.” Bridge v. Eggleston, 14 Mass. 245; Foster v. Hall, 12 Pick. 100; and the same principles are distinctly held in Seavey v. Dearborn, 19 N. H. 358.
Judgment on the verdict.